Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedPetition dated 2nd December, 2015 (Malindi)· [2018] KEELC 2396 (KLR)

Farooq Imtiaz Mohamed Malik v Director of Police Investments & 3 others [2018] KEELC 2396 (KLR)

Environment and Land Court
19 July 2018
JOJ.O. OlolaOAO.A. Angote
5,145 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

#

A Malindi court cancelled a land title, ruling that land reserved for government housing could not lawfully be allocated to private buyers.

What this practically means

#

Executive summary

#
The Petitioner, registered proprietor of L.R. No. 7547, Malindi since 13th January 2011, petitioned the Environment and Land Court at Malindi alleging that his constitutional right to own property under Article 40 was infringed when he was ejected and restrained from developing the suit land by the 2nd Respondent. The Respondents filed a Cross-Petition averring that the land was reserved for government pool housing on the Malindi Development Plan, houses senior government officers and government departments, and was never available for alienation; they sought cancellation of the Petitioner's title and rectification of the register. The Ethics and Anti-Corruption Commission was enjoined as an Interested Party and its investigation showed the allotment to Arthur K. Kiseve rested on a Part Development Plan that was never approved because the land was reserved for housing pool. Kiseve (DW9) denied ever applying for, paying for, or selling the land. The court framed four issues and held that the allotment letter TP47/I/X/177 and the Transfer of 8th January 1993 were forgeries; Omar's registration was a nullity ab initio and he could pass no title to the Petitioner. Relying on Supa Nova Properties and Henry Muthee Kathurima, the court held that Section 23 of the Registration of Titles Act and Section 26 of the Land Registration Act are subject to Article 40(6) of the Constitution, so unlawfully acquired titles must be cancelled regardless of circumstances. The Petition was dismissed with costs, the Cross-Petition allowed, the Certificate of Title (CR 23816) cancelled, and the Petitioner ordered to pay the Respondents' costs.

Key legal issues

#
01

Whether the suit land was public land reserved for government pool housing and thus unavailable for alienation

Holding

The court found the land was reserved for government houses under the 1980 Malindi Development Plan and the PDP was never approved

Reasoning

The Kilifi District Physical Planner objected in writing on 12th January 1993 that the land fell in an area reserved for housing pool. DW5, DW6 and DW7 confirmed no approved Part Development Plan existed. The allotment letter issued the same day the Director of Physical Planning sought approval, before the PDP was approved, was unprocedural. The court was satisfied from the Development Plan that the land was reserved for government houses.

p. 6
02

Whether the Petitioner holds a valid title protected by indefeasibility under Section 23 of the Registration of Titles Act

Holding

No valid title; the allotment letter to Kiseve and the Transfer of 8th January 1993 were forgeries and the resulting title was null and void ab initio

Reasoning

Kiseve (DW9) denied applying for, paying for, or ever selling the land; his signature on the Transfer was never witnessed. The physical planner's objection to allocation was ignored. Since Omar's registration was a nullity, he had no title to pass to the Petitioner, and Article 40(6) ousts the sanctity of title for unlawfully acquired property.

p. 5
03

Whether the Petitioner's right to property under Article 40 was infringed

Holding

Not infringed; a petitioner cannot invoke Article 40 to protect an unlawfully acquired title

Reasoning

The Petitioner's root title was forged and the land was public land reserved for government pool housing. Under Article 40(6) the right to property does not extend to property unlawfully acquired. The Respondents' Cross-Petition for cancellation and rectification of the register was therefore allowed.

p. 6

Legal principles established

#
  • A title acquired over land reserved for a public purpose through an unlawful allocation is null and void ab initio and passes no title to a subsequent purchaser
  • Section 23 of the Registration of Titles Act and Section 26 of the Land Registration Act are subject to Article 40(6) of the Constitution; unlawfully acquired title must be cancelled regardless of circumstances
  • Land set aside for a public purpose cannot be allocated to a private person at the whim of the Commissioner of Lands; courts will cancel such titles

Court orders

#
  1. 1.Dismissal of the Petition with costs
  2. 2.Allowance of the Respondents' Cross-Petition
  3. 3.The Certificate of Title for L.R. No. 7547 (CR 23816) cancelled
  4. 4.The Petitioner to pay the Respondents the costs of the Cross-Petition

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 40(6)
  • Registration of Titles Act (repealed)Section 23(1); Section 24
  • Land Registration ActSection 26

Cases cited (2)

  • Supa Nova Properties Ltd vs. The Land Registrar & Others
    Mombasa Civil Appeal No. 98 of 2016
  • Henry Muthee Kathurima vs. Commissioner of Lands & Another
    (2015) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - Petition for enforcement of the right to property under Article 40 (First Instance, Environment and Land Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (6)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Farooq Imtiaz Mohamed Malik v Director of Police Investments & 3 others [2018] KEELC 2396 (KLR)", Case Analysis (2018). Petition dated 2nd December, 2015 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2396/eng@2018-07-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.